The Complexities of Reality Winner’s Case

I suggested in this post that some of the coverage of Reality Winner’s arraignment was less than stellar.

Case in point: I didn’t see any reporting of the hearing that the government had moved to declare her case complex because they intended to use the Classified Information Procedures Act (CIPA, which governs how the government uses or substitutes classified information to be used in a trial); Winner’s attorney did not object. The court formally approved that on June 14. Then, on June 19, the government moved for a CIPA pretrial conference, which (credit where due) the Augusta press covered on Friday.

Perhaps this is just formality. At the end of its CIPA motion, the government refers to the “fast-moving nature of this case” even while admitting that it may not need some (or most?) of the CIPA procedures it had just laid out.

Given that this investigation concerns the disclosure of classified material and that the government’s evidence includes classified information, the government respectfully moves for a pretrial conference, pursuant to Section 2 of CIPA, to establish a discovery and motion schedule relating to any classified information. The government notes that some of the CIPA sections outlined above may not be invoked or need to be addressed.

Further, dependent upon future events and potential pretrial resolutions and proceedings, there may be no need for hearings pursuant to CIPA. Because of the fast-moving nature of this case, the precise amount of classified information that may be discoverable or used as evidence is still being determined.

Claims of thumb drives inserted into Air Force computers last year notwithstanding, on its face, this appears to be a cut-and-dry case: out of a pool of six potential leakers, one — Winner — has already confessed to the FBI. So perhaps the government is just doing this to ensure it has a Court Information Security Officer involved and a hefty protection order imposed on Winner’s defense team.

But in the same motion, the government makes it clear that it collected classified material beyond the document that Winner is alleged to have leaked to The Intercept.

The indictment in this case charges the defendant with unlawfully retaining and transmitting classified national defense information in violation of 18 U.S.C. § 793(e). Classified material, including but not limited to the document which the defendant is charged with unlawfully retaining and transmitting, was collected as part of the underlying investigation and will be the subject of certain procedures set forth in CIPA, as well as in other applicable rules, statutes, and case law. The disclosure of such material will raise issues of national security that the Court must address before the material is provided to the defense. [my emphasis]

That might just refer to data the NSA and FBI used to hone in on Winner. Or it may mean there’s more to the case than meets the eye.

And whatever that is will remain out of eyesight, behind CIPA.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

3 replies
  1. SpaceLifeForm says:

    Maybe details out of sight, but media reports will be rampant, to keep the ball in the air.
    Will not surprise me if stuff gets leaked from closed hearings. Someone is selling a story.

    Her court appointed attorney Titus Nichols immediately starting questioning the agenda.

    “You don’t see very often the deputy attorney general releasing a press release before a case has been prosecuted,” Nichols said. “The government seems to have a political agenda. They’re going after a low-level government employee.”

    Asked whether the leaked documents were legitimate, he responded, “If the documents are accurate, then the bigger issue is: Did Russia hack our election?”

    [Or, are they fakeintel to hide a different group?]

  2. SpaceLifeForm says:

    On the team. Note what the government calls “spillage” I call intentional misclassification and/or a method to dump internally, for example, Top Secret info under a Secret doc.
    Also this is old news now, about three weeks old, I.E., on or about 2017-06-06.

    http://wjbf.com/2017/06/06/reality-winners-attorney-makes-statement-on-nsa-leak/

    http://m.dailyreportonline.com/#/article/1202788869246/Who-is-Titus-Nichols-The-Augusta-Lawyer-Defending-Reality-Winner

    U.S. Magistrate Judge Brian Epps of the Southern District of Georgia appointed Nichols Monday to represent Winner, starting with her first appearance at Augusta’s federal courthouse. With no public defender, the court maintains a list of pre-cleared private attorneys to appoint for criminal defense.

    “The judge appointed me because of my military background,” said Nichols, who is currently on reserve duty as a JAG in the Georgia Army National Guard. He said he has experience with what the government calls “spillage”—the leaking of classified information into lower levels of knowledge. He is an associate with the Bell & Brigham firm in Augusta.

    On Tuesday, Nichols brought in a co-counsel, another former prosecutor he knows from the Augusta district attorney’s office, Keith Johnson. Johnson now has his own firm handling criminal defense. Johnson is also a judge in the Augusta Juvenile Court. His name might be familiar to football fans who knew him as a cornerback at Furman University, where he played on scholarship before earning a history degree and moving on to law school at Michigan State University.

  3. SpaceLifeForm says:

    OT: Why are traffic cameras windows based?

    More importantly, how does Wannacry infect via USB?

    http://www.theage.com.au/victoria/police-set-to-cancel-more-red-light-speeding-fines-20170624-gwxs0x.html

    MS Neville said it was her understanding RedFlex became aware of the virus on June 15, but rather than notifying the relevant authorities, contractors rebooted and repaired 42 of the cameras and concealed it from the Department of Justice and Regulation.

    “I realised at no point could I be confident that this virus had not gone into any of the other 280 cameras,” Ms Neville told reporters.

    ..

    The source of the infection was a single USB stick used by an outside contractor hired to perform maintenance on all the state’s cameras, Ms Neville said.

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